[Federal Register: November 17, 2003 (Volume 68, Number 221)]
[Notices]
[Page 64856-64857]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17no03-30]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[(A-489-805), (C-489-806)]
Notice of Initiation and Preliminary Results of Changed
Circumstances Antidumping and Countervailing Duty Administrative
Reviews: Certain Pasta From Turkey
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of Initiation and Preliminary Results of Changed
Circumstances Antidumping and Countervailing Duty Administrative
Reviews.
-----------------------------------------------------------------------
SUMMARY: The Department of Commerce has received information sufficient
to warrant the initiation of changed circumstances administrative
reviews of the antidumping and countervailing duty orders on certain
pasta from Turkey. Based on this information, we preliminarily
determine that Tat Konserve Sanayi A.S. is the successor-in-interest to
Pastavilla Makarnacilik Sanayi ve Ticaret A.S., for purposes of
determining antidumping and countervailing duty liabilities. Interested
parties are invited to comment on these preliminary results.
EFFECTIVE DATE: November 17, 2003.
FOR FURTHER INFORMATION CONTACT: Melanie Brown (Countervailing) or
Lyman Armstrong (Antidumping), Office of AD/CVD Enforcement, Import
Administration, International Trade Administration, U.S. Department of
Commerce, 14th and Constitution Avenue, NW., Washington, DC 20230,
telephone: (202) 482-4987 or (202) 482-3601, respectively.
SUPPLEMENTARY INFORMATION:
Background
On July 24, 1996, the Department of Commerce (``the Department'')
published in the Federal Register the antidumping and countervailing
duty orders on pasta from Turkey (61 FR 38545-38547). On September 24,
2003, Tat Konserve Sanayi A.S. (``Tat''), submitted information stating
that Tat is the successor-in-interest to Pastavilla Makarnacilik Sanayi
ve Ticaret A.S. (``Pastavilla''), and, as such, Tat is entitled to
receive the same antidumping and countervailing duty treatment accorded
Pastavilla.
Scope of Review
Imports covered by this review are shipments of certain non-egg dry
pasta in packages of five pounds (2.27 kilograms) or less, whether or
not enriched or fortified or containing milk or other optional
ingredients such as chopped vegetables, vegetable purees, milk, gluten,
diastases, vitamins, coloring and flavorings, and up to two percent egg
white. The pasta covered by this scope is typically sold in the retail
market, in fiberboard or cardboard cartons, or polyethylene or
polypropylene bags of varying dimensions.
Excluded from the scope of this review are refrigerated, frozen, or
canned pastas, as well as all forms of egg pasta, with the exception of
non-egg dry pasta containing up to two percent egg white.
The merchandise subject to review is currently classifiable under
item 1902.19.20 of the Harmonized Tariff Schedule of the United States
(HTSUS). Although the HTSUS subheading is provided for convenience and
Customs purposes, the written description of the merchandise subject to
the order is dispositive.
Scope Rulings
The Department has issued the following scope ruling to date:
(1) On October 26, 1998, the Department self-initiated a scope
inquiry to determine whether a package weighing over five pounds as a
result of allowable industry tolerances is within the scope of the
antidumping and countervailing duty orders. On May 24, 1999, we issued
a final scope ruling finding that, effective October 26, 1998, pasta in
packages weighing or labeled up to (and including) five pounds four
[[Page 64857]]
ounces is within the scope of the antidumping and countervailing duty
orders. See Memorandum from John Brinkmann to Richard Moreland, dated
May 24, 1999, in the case file in the Central Records Unit, main
Commerce building, room B-099 (``CRU'').
Initiation of Changed Circumstances
In November 2002, Koc Group, a Turkish conglomerate, and
Pastavilla's parent company, announced its intent to reorganize and
merge its four food-producing subsidiaries. On June 25, 2003, the
Shareholders' General Assemblies for Tat and Pastavilla approved the
merger. The merger plan called for three of the Koc Group companies to
be merged into a fourth Koc Group company, Tat, a tomato products
producer. The companies merged into Tat included: Pastavilla, a pasta
producer; Maret Marmara Besicilik ve Et Sanayi ve Ticaret A.S., a meat
processor; and Sek S[uuml]t Endustrisi Kurumu, a dairy products
producer. On that same day, Tat's General Assembly approved amendments
to Tat's articles of incorporation to include the operations of the
merged companies. Therefore, the reorganization of the Koc companies
was completed on June 25, 2003.
In the course of this reorganization, Tat acquired Pastavilla as an
ongoing concern, i.e., Tat took over Pastavilla's factory, operations,
management, trade names (Pastavilla; Lunch & Dinner; and Kartal), and
also all of Pastavilla's liabilities. Tat then began producing pasta
using the same products, from the same suppliers, the same personnel
and equipment, and selling them under the same brand names, to the same
customers through the same channels, using the same management team as
its predecessor, Pastavilla. On September 24, 2003, Tat advised the
Department of the details of the reorganization, and requested that the
Department conduct a changed circumstances review to determine that Tat
is the successor-in-interest to Pastavilla.
Based on the information provided by Tat, and in accordance with
section 751(b)(1) of the Tariff Act of 1930, as amended (``the Act'')
and 19 CFR 351.216(d) of the Department's regulations, the Department
has determined that there is a sufficient basis to initiate a changed
circumstances review to determine whether Tat is the successor-in-
interest to Pastavilla.
Preliminary Results
In making a successor-in-interest determination, the Department
examines several factors including, but not limited to, changes in: (1)
Management; (2) production facilities; (3) supplier relationships; and
(4) customer base. See, e.g., Brass Sheet and Strip from Canada: Notice
of Final Results of Antidumping Administrative Review, 57 FR 20460 (May
13, 1992) (``Canadian Brass''). While no one or several of these
factors will necessarily provide a dispositive indication, the
Department will generally consider the new company to be the successor
to the previous company if its resulting operation is not materially
dissimilar to that of its predecessor. See, e.g., Industrial Phosphoric
Acid from Israel: Final Results of Changed Circumstances Review, 59 FR
6944 (February 14, 1994) and Canadian Brass, 57 FR 20460. Thus, if the
evidence demonstrates that, with respect to the production and sale of
the subject merchandise, the new company operates as the same business
entity as the former company, the Department will assign the new
company the cash deposit rate of its predecessor.
We preliminarily determine that Tat is the successor-in-interest to
Pastavilla. In its September 24, 2003 submission, Tat provided evidence
illustrating that its production continues with the same equipment, the
same management, the same raw materials purchased from the same
suppliers, and the same production process, as Pastavilla. Tat also
provided evidence that it continues to sell the same products to the
same customers to which Pastavilla previously sold. Documentation
attached to Tat's September 24, 2003 submission supports its claims
that the acquisition of Pastavilla resulted in little or no changes in
the production facilities, supplier relationships, customer base, or
management. This documentation consisted of: (1) An independent
valuation report which included, inter alia, Pastavilla's land, factory
and trademark names; (2) Pastavilla's and Tat's Shareholders' General
Assemblies and Board of Directors approval of the merger; (3) the
merger agreement; (4) amendments to Tat's articles of incorporation;
(5) Tat and Pastavilla's price lists; (6) Pastavilla's supplier lists,
including Tat's list of affiliates; (6) Pastavilla's distributer lists;
(7) Pastavilla, Koc Group, and Tat's sales history, and product
catalogs; and (8) other documents supporting the transfer of assets and
liabilities from Pastavilla to Tat. The documentation described above
demonstrates that: (1) Substantially all employees of Pastavilla,
including management, have been transferred to Tat; (2) the business
was sold as a going concern; and (3) there was little to no change in
management structure, supplier relationships, production facilities, or
customer base.
When it concludes that expedited action is warranted, the
Department may publish the notice of initiation and preliminary results
in a changed circumstances review concurrently. See 19 CFR
221(c)(3)(ii). The Department has determined that such action is
warranted in this instance because Tat has provided prima facie
evidence that it is the successor-in-interest to Pastavilla.
For these reasons, we preliminarily find that Tat is the successor-
in-interest to Pastavilla and, thus, should receive the same
antidumping and countervailing duty treatment with respect to certain
pasta from Turkey as the former Pastavilla.
Public Comment
Any interested party may request a hearing within 30 days of
publication of this notice. Any hearing, if requested, will be held no
later than 44 days after the date of publication of this notice, or the
first workday thereafter. Case briefs from interested parties may be
submitted not later than 30 days after the date of publication of this
notice. Rebuttal briefs, limited to the issues raised in those
comments, may be filed not later than 37 days after the date of
publication of this notice. All written comments shall be submitted in
accordance with 19 CFR 351.303. Persons interested in attending the
hearing, if one is requested, should contact the Department for the
date and time of the hearing. The Department will publish the final
results of this changed circumstances review, in accordance with 19 CFR
351.216(e), including the results of its analysis of issues raised in
any written comments.
We are issuing and publishing these results and notice in
accordance with sections 751(b)(1) and 777(i)(1) and (2) of the Act and
section 19 CFR 351.216.
Dated: November 10, 2003.
James J. Jochum,
Assistant Secretary for Import Administration.
[FR Doc. 03-28672 Filed 11-14-03; 8:45 am]